NBMN v Minister for Immigration

Case •

[2007] FMCA 342

•

6 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBMN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 342
MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming delegate’s decision not to grant protection visa – citizen of China claiming fear of persecution because of religion – merits review – no reviewable error – privative clause decision.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B, 424A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Applicant: NBMN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3367 of 2006
Judgment of: Scarlett FM
Hearing date: 6 March 2007
Date of last submission: 6 March 2007
Delivered at: Sydney
Delivered on: 6 March 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Johnson
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3367 of 2006

NBMN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 13 October and handed down on 26October 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

Background

  1. The background to this matter is that the Applicant is a citizen of the People's Republic of China. She arrived in Australia on 9 April 2005.  She applied for a protection visa on 19 April 2005.  Her application for a visa was refused on 23 July in that year. The Applicant then sought a review of that decision from the Refugee Review Tribunal. 

  2. The Tribunal originally heard the Applicant's application for review but affirmed the decision of the delegate on 21 October 2005. The Applicant then sought judicial review of that decision from the Federal Magistrates Court. 

  3. On 10 August 2006, this Court, by consent, set aside the Tribunal's decision and remitted the matter to the Tribunal for determination according to the law.  The Tribunal wrote to the Applicant, inviting her to attend a hearing of the Tribunal. That hearing took place on


    12 October 2006, and the Applicant gave evidence at that hearing.  She produced her passport, some photographs and other documents.

  4. The Applicant claimed to have a well-founded fear of persecution, on the basis of her Christian religion, and stated that she would not give up her beliefs, and feared persecution should she be required to return to China. The Tribunal asked the Applicant a number of questions about her history and her practice of Christianity and how the Applicant managed to leave China without difficulty. 

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 90-93 of the Court Book.  The Tribunal accepted that the Applicant is a citizen of China, and relied on the passport which the Applicant had produced.  The Tribunal did accept that the Applicant had attended at the Central Baptist Church in Australia since she came to Australia in 2005.  The Tribunal did not, however, accept, on the evidence available to it, that the Applicant was genuinely of the Christian faith or that she was involved with a Christian underground church in China. 

  2. The Tribunal referred to independent country information, and the Tribunal sets out, at page 91, how that information was read out to the Applicant and discussed with her at the hearing. The Tribunal was of the view that the independent country information was not consistent with the Applicant's claims. The Tribunal did not form the view that the Applicant would be persecuted in China if she were to return, and did not accept that the Applicant had been truthful at the hearing.  The Tribunal found this, at page 92 of the Court Book:

    In the Tribunal's view, there is no plausible evidence before it that the applicant is of interest to authorities/police/neighbourhood committee members in China for the reasons that she claims or that she has suffered persecution in her country for any Convention reason, including her religious beliefs and activities.  It does not accept that she left China for the reasons that she claims.  Nor, in the Tribunal's view, does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason, including her religious beliefs, either now or in the reasonably foreseeable future, if she returns to her country. Having regard to the above, the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well‑founded fear of persecution in China, within the meaning of the Convention.

  3. Accordingly, the Tribunal affirmed the decision not to grant the Applicant a protection (Class XA) visa.

The Application for judicial review

  1. The Applicant commenced proceedings for judicial review of that decision, by means of an application and an affidavit filed on 16 November 2006. On 24 January 2007, she filed an amended application. She also filed an affidavit that same date, to which she annexed a copy of a transcript of the Tribunal hearing. On 23 February 2007, the Applicant filed a written outline of submissions.  The solicitors for the Respondent Minister filed an outline of submissions on 7 February 2007. I will deal with all of these documents.

  2. In the Applicant's amended application, she sets out, as grounds for the application, that there were errors in law in the Tribunal's decision, constituting jurisdictional errors. She claimed that the Tribunal did not comply with its obligations under s.424A of the Migration Act, in respect of a number of items of country information. That non‑compliance, the Applicant said, was that the Tribunal did not give her the information before the hearing, which is being used as the reason, or part of the reason, for affirming the decision under review. She claimed that the Tribunal had failed to ensure that she understood why the information was relevant to the hearing, and she claimed that it was impossible for her to have a fair chance to comment on the independent country information. She submitted that the Tribunal should provide her with the complete independent country information, or the particular information which would be the reason, or part of the reason, for affirming the decision that's under review.

  3. The second ground is that, when assessing her application, the Tribunal did not comply with its obligation under s.424A of the Migration Act, in respect of the particular personal information which she provided to the Tribunal in her application. Again, she claims a breach of s.424(2)(a) for the same reason, and referred the Court to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.

  4. The Applicant also complained that the Tribunal had not complied with its obligations under s.441 of the Migration Act, and that there were procedural errors constituting an absence of natural justice.

  5. The Applicant explained on those grounds in her outline of submissions. She submits that the Tribunal denied her natural justice by not considering the context in which she would face persecution and serious harm for being an underground church Christian in China, and claimed that the Tribunal had not considered the evidence in favour of the Applicant but only considered the evidence which is not in favour of the Applicant. The Applicant reiterated her belief that the Tribunal had not complied with its obligations under s.424A of the Migration Act and reiterated her belief that the Tribunal should have done so before the hearing.

  6. The Applicant also complained that the Tribunal did not comply with the provisions of s.422B of the Migration Act, in respect of the Tribunal's querying of certain photographs and an error made by the Tribunal, in addressing the Applicant by the wrong name, and also in saying:

    if I decide that the main reason you went to Australia was to further you to assist your claim to be a refugee.

  7. The Applicant expanded on those claims in oral submissions.

  8. As far as s.424A of the Migration Act is concerned, there are some significant exclusions provided by sub-s.424A(3) of that Act.


    Sub-section (3) provides:

    This section does not apply to information: 

    (a) that is not specifically about the applicant or another person, and is just about a class of persons of which the applicant, or other person, is a member; or,

    (b) that the applicant gave for the purpose of the application; or,

    (c) that is non‑disclosable information.

  9. There is no suggestion of any non-disclosable information, but the Applicant's complaints of breaches of s.424A of the Act on the part of the Tribunal relate to three things:

    i)independent country information;

    ii)information provided by the Applicant to the Tribunal;

    iii)information provided by the Applicant to the Department of Immigration. 

  10. As to information provided by the Applicant to the Department, there is no evidence that the Tribunal relied on any such information, and, indeed, that claim is not particularised in any way.  I am not able to see any information that formed part of the original application that was relied on by the Tribunal as a reason, or part of the reason, for affirming the delegate's decision.

  11. Information provided by the Applicant to the Refugee Review Tribunal comes under the exclusion in sub-s.424A(3)(b), because it is information that the Applicant gave for the purpose of the application. 

  12. Independent country information is covered under s.424A(3)(a), because that is information that is not specifically about the Applicant or another person, and is just about a class of persons of which the Applicant, or other person, is a member - in other words, independent country information.

  13. The reliance by the Applicant on s.441A does not disclose jurisdictional error, because I have found no breach of s.424A.

  14. There is also a claim of a breach of s.441 as it stands. That is clearly an error in that what is meant is s.441A, because s.441 of the Act refers to sittings of the Refugee Review Tribunal.

  15. There is a complaint by the Applicant of a breach of s.422B of the Migration Act. That section was introduced into the Act in 2002. It is a statement which provides that the particular Subdivision, Division 4, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with. The Full Court of the Federal Court has made it clear - in such matters as Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 - that s.422B excludes common law natural justice. That means that the sections which relate to natural justice or procedural fairness are those that are contained in Div.4. It includes, of course, s.424A.

  16. The Applicant's claim that the Tribunal was not persuaded by the photographs does not establish any breach of natural justice, either statutory or common law.  As to whether the Tribunal accepts evidence, that is purely a matter for the Tribunal. The error in the Tribunal Member calling the Applicant by the wrong name is a regrettable mistake, for which the Tribunal Member apologised. To my mind, nothing turns on that.

  17. The reference to the Tribunal Member saying about whether the Tribunal would decide that the main reason that the Applicant went to church in Australia was to assist her claim to be a refugee does not, of itself, disclose a breach of s.422B, or any of the sections in Div.4.
    As Ms Johnson for the Minister pointed out, the Tribunal Member was referring to the requirements of s.91R of the Migration Act, particularly sub-s.(3) of s.91R. That section says:

    For the purposes of the application of this Act and the regulations to a particular person:

    (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention, as amended by the Refugees Protocol, disregard any conduct engaged in by the person in Australia, unless;

    (b) the person satisfies the Minister that the person engaged in the conduct, otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention, as amended by the Refugees Protocol.

  18. In other words, the law requires the Applicant to satisfy the Minister, or, in this case, the Tribunal, sitting in the shoes of the Minister, that her attendance at church was not for the purpose of strengthening her claim for refugee status in Australia. It does not disclose any breach of s.422B of the Act.

  19. The Applicant, of course, has also complained that the Tribunal showed an attitude of bias towards her during the hearing.  In oral submissions, the Applicant said that the Tribunal had, at times, cut her off and not allowed her to finish sentences or statements. The Applicant has provided an affidavit, to which she has annexed a transcript of the hearing.  I have read that, and I cannot see any example of where the Tribunal Member has spoken over the Applicant, or prevented her from finishing, or, in some way, stopped her from giving evidence.  In my view, no bias has been shown.

  20. The Full Court of the Federal Court has ruled, in such matters as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, that allegations of bias or bad faith are serious allegations, as they allege personal misconduct on the part of the decision‑maker. The allegation is not to be lightly made and must be clearly alleged and proved. The Full Court of the Federal Court set out a number of propositions in respect of this matter, in [43]-[48] of SBBS.  I am not satisfied that any bias has been shown on the part of the Tribunal.

  21. The Applicant also put to the Court, in oral submissions, that there were matters relating to the photographs, that it was quite common for people attending church to take photographs of each other. I am obliged to say that that may well be true. Unfortunately, the Court cannot take fresh evidence relating to the factual matters before the Tribunal. The Court only has the power to consider the evidence that was before the Tribunal at the time of the hearing, or prior to the Tribunal making its decision.  The Court does not have the power to receive further evidence. 

  22. The fact is that the Court, in conducting a judicial review, has limited powers. It does not conduct what is known as merits review or a challenge to the factual findings of the Tribunal. The Court does not have the power to second-guess the Tribunal as to the factual conclusions.  The Court looks at the findings made by the Tribunal and, provided that there is evidence upon which those findings may be based, there is no jurisdictional error.  Even if the Court were to form the view that, on that evidence, the Court might not necessarily arrive at the same conclusion as the Tribunal, there is no jurisdictional error, because the Court does not have the power to substitute its own view of the facts, or the conclusions to be drawn from the facts, for those of the Tribunal.  So long as the finding on the facts was open to the Tribunal, the Court has no power to intervene. 

  23. The decision of the Tribunal, in my view, is a privative clause decision, as defined in sub-s.474(2) of the Migration Act. It is a privative clause decision because I am unable to discern any jurisdictional error. The Applicant's claims of jurisdictional error have not been made out. On the material before me, the Tribunal did consider the matters that the Applicant raised as part of her case. The Tribunal did not accept that that evidence was sufficient to satisfy the Tribunal that the Applicant met the necessary criteria for a visa. A significant reason for that was the adverse view that the Tribunal took of the credibility of the Applicant's evidence.

  24. A credibility finding is a finding of fact. So long as there is evidence upon which the Tribunal can make a finding as to a party's credibility, whether positive or negative, again, the Court has no jurisdiction to intervene. In my view, this is a matter that was decided by the Tribunal, largely, on the basis of credibility, and that remains within the province of the Tribunal.

  25. I am mindful of the fact that the Applicant is not legally represented.  Clearly, she has had assistance from another person, who has assisted her in preparing all this documentation.  That person may or may not be a lawyer.  Nevertheless, the Applicant is not legally represented at the hearing before me.  Where an applicant is unrepresented, the Court must consider the information before it, including the Tribunal decision, independently of the parties' submissions, in order to ascertain whether there is an arguable case for jurisdictional error that the applicant has not raised, or has not been referred to by either party.  In this case, I am not able to discern any jurisdictional error.  It follows then, as I said, that this decision is a privative clause decision, as defined by sub-s.474(2). Sub-section (1) of s.474 says that:

    A privative clause decision is not subject to orders in the nature of certiorari, or mandamus, or prohibition, or declaration, in any Court, on any account.

  26. It follows from that, then, that I am obliged to dismiss the application.

  27. There is an application for costs. The Applicant has been wholly unsuccessful in her application and the respondent Minister has been successful.  There is nothing to indicate that the Court should depart from the rule that costs follow the event; in other words, that a successful legally represented party should be entitled to an order for costs in their favour.  I do propose to make a costs order in the First Respondent's favour, in the sum of $2,800.00, which is a figure well within the scale. 

  28. I also note that the title of the First Respondent Minister has changed.  This is a not infrequent occurrence. The Minister's current title is Minister for Immigration & Citizenship. I will make a formal order changing the title for the purpose of these proceedings.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  16 March 2007

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